As we note in Chapter 1, scholars and commentators disagree about how to put the long debate over Court packing during the New Deal era into perspective. On some accounts, the plan and the debate surrounding it prompted changes in the Court’s doctrine that left in place Roosevelt’s existing New Deal and ended an era in which the Court frequently invalidated laws designed to protect workers, consumers, and the public. In that doctrine, the Court established that Congress and state legislatures have broad authority to regulate the economy. But the political controversy over the Court-packing plan clearly divided Democrats and took a major toll on the once broad political support Roosevelt enjoyed. According to some historians, this “undermined bipartisan support for the New Deal,” which along with numerous other developments of the time helped bring about the end of major social reform until the 1960s.[53]
C. A Failed Constitutional Amendment to Fix the Court at Nine
In the ensuing decades, a strong constitutional norm against any measure that might be deemed “Court packing” developed, leading some commentators today to describe Court expansion as a “third rail in American politics.”[54] Members of Congress sought in the 1950s to amend the Constitution to fix the size of the Supreme Court at nine members.[55] (The proposed amendment would also have prevented Congress from restricting the Supreme Court’s appellate jurisdiction over constitutional claims.)[56] Senator John Butler led the charge, declaring that the goal of the amendment was to “forestall future attempts to undermine the integrity and independence of the Supreme Court.”[57]
Supporters argued that the amendment would close “loopholes” in the constitutional structure.[58] Senator Butler emphasized that Roosevelt was not the first to propose a change in the Supreme Court’s size in order to influence the future course of its decisions: “The Congress … in 1866, was guilty of the same wrong … except that in 1866, the attempt was successful” at “prevent[ing] President Johnson from having an opportunity to fill the vacancies with persons who were friendly to his policies.”[59] Butler asserted: “We cannot know, with these historical illustrations fresh in our minds from what quarter and at what time the next attempt to influence the judgment of the Supreme Court may come.”[60]
Senator Butler’s amendment easily mustered the two-thirds supermajority needed to make it through the Senate.[61] But the measure failed in the House of Representatives. Some lawmakers worried that freezing the Supreme Court’s size would be unwise.[62] Congress might, the legislators argued, need to modify the Court’s size for institutional reasons, such as to enable it to tackle a larger workload. Representative Emmanuel Celler stated that, although he
